1Magistrates Act 1983

South Australia Magistrates Act 1983 An Act to provide for the appointment of magistrates; to provide for the organisation and regulation of the magistracy; and for other purposes.

Contents Part 1—Preliminary 1 Short title 3 Interpretation Part 2—Appointment and administration of magistracy 5 Appointment of magistrates 6 Magistracy 6A Chief Magistrate to be magistrate and District Court Judge 6B Acting Chief Magistrate 7 Administration of magistracy Part 3—Tenure of office 9 Tenure of office 10 Suspension from office Part 4—Remuneration 13 Remuneration of magistrates Part 5—Other conditions of office 14 Superannuation 15 Recreation leave 16 Sick leave 17 Long service leave 18 Special leave 18A Concurrent appointments and outside employment etc 19 Determination of rights on transition from other employment 20 Payment of monetary equivalent of leave to personal representative etc 21 Industrial awards not to affect magistrates Part 6—Exercise of magisterial powers by other members of judiciary 22 Certain members of the judiciary may assume magisterial powers Part 7—Exercise of powers under Commonwealth Acts 23 Arrangements with Commonwealth Legislative history

The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Magistrates Act 1983. 3—Interpretation In this Act, unless the contrary intention appears— the Chief Justice means the Chief Justice of the Supreme Court and includes an acting Chief Justice of the Supreme Court; the Chief Magistrate means the person holding or acting in the office of the Chief Magistrate under this Act; magistrate means a magistrate remunerated by salary in respect of his or her magisterial office; part-time magistrate means— (a) a magistrate appointed on a part-time basis; or (b) a magistrate who performs the duties of his or her office on a part-time basis pursuant to an agreement under section 5; working day for a magistrate means a day on which the magistrate would ordinarily be required to work (assuming he or she were not on leave). Part 2—Appointment and administration of magistracy 5—Appointment of magistrates (1) The Governor may, on the recommendation of the Attorney-General, appoint such magistrates as the Governor thinks necessary for the proper administration of justice. (2a) An appointment of a magistrate under this section will be taken to be on a full-time basis unless the instrument of appointment provides that the appointment is on a part‑time basis. (2b) However, a magistrate not appointed on a part-time basis may, by written agreement with the Chief Magistrate made with the approval of the Attorney-General, perform the duties of his or her office on a part-time basis for a period specified in the agreement. (2c) An instrument appointing a magistrate on a part-time basis or an agreement under subsection (2b) must specify the hours of duty the magistrate will ordinarily be required to work, expressed as a proportion of the time a magistrate appointed on a full-time basis is ordinarily required to work. (2d) The hours of duty specified in an instrument of appointment or an agreement under subsection (2b) may be varied by written agreement between the magistrate and the Chief Magistrate made with the approval of the Attorney-General. (3) A magistrate appointed under this section will, if the instrument of appointment so provides, be an acting magistrate and, in that case, the appointment will be for a term (not exceeding 12 months) specified in the instrument of appointment. (3a) A former magistrate who has retired from office is eligible for appointment as an acting magistrate. (4) The Attorney-General must, before making a recommendation for the appointment of a magistrate, consult with— (a) the Chief Justice; and (b) the Chief Magistrate, in relation to the proposed appointment. (5) A person is not eligible for appointment as a magistrate unless he or she is a legal practitioner of at least 5 years standing. (6) For the purpose of determining whether a legal practitioner has the standing necessary for appointment as a magistrate, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account. (7) An instrument of appointment of a magistrate may contain a condition requiring the duties of the magistrate to be performed wholly or predominantly at 1 or more specified places in accordance with such directions as the Chief Magistrate may give to the magistrate under section 8. (8) The Governor may, on the recommendation of the Attorney-General made with the concurrence of the Chief Magistrate, vary a condition of an appointment of a magistrate imposed under subsection (7). (9) A magistrate whose appointment is varied under subsection (8) must be notified in writing of the variation. 6—Magistracy (1) There will be a Chief Magistrate appointed by the Governor on the recommendation of the Attorney‑General. (2) A person is not eligible for appointment as the Chief Magistrate unless he or she is a legal practitioner of at least 7 years standing. (4) For the purpose of determining whether a legal practitioner has the standing necessary for appointment under this section, periods of legal practice and (where relevant) judicial service within and outside the State will be taken into account. (5) Notice of intention to resign an office under this section must be given to the Attorney‑General at least 1 month before the resignation is to take effect. 6A—Chief Magistrate to be magistrate and District Court Judge (1) The Chief Magistrate will be taken to have been appointed as a magistrate and as a Judge of the District Court of South Australia (if he or she is not already a magistrate or a Judge of the District Court of South Australia). (2) Section 6 of the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 applies to the Chief Magistrate and, for that purpose, the office of Judge of the District Court of South Australia will be taken to be the primary judicial office of the Chief Magistrate and service as Chief Magistrate will be regarded as if it were service as a Judge of the District Court of South Australia. (3) However— (a) the Chief Magistrate may not perform the duties, or exercise the powers, of a Judge of the District Court of South Australia while the Chief Magistrate holds an appointment as Chief Magistrate; and (b) the Chief Magistrate may resign from the office of Judge of the District Court of South Australia and from the office of the Chief Magistrate without simultaneously resigning from office as a magistrate and such a resignation will not give rise to any right to pension, retirement leave or other similar benefit. (4) The Governor may, by regulation, make provisions relating to existing entitlements, and recognition of prior service, of the person holding the office of the Chief Magistrate on the commencement of this section or a person appointed to the office after that commencement, including by making modifications to the application of an Act that deals with superannuation or pensions. 6B—Acting Chief Magistrate (1) Subject to subsection (2), the Chief Magistrate may, by instrument in writing, appoint a magistrate to be Acting Chief Magistrate during a period, and subject to any conditions, specified in the instrument of appointment. (2) The appointment of an Acting Chief Magistrate under subsection (1) ceases on the office of the Chief Magistrate becoming vacant. (3) If— (a) the office of the Chief Magistrate becomes vacant; or (b) — (i) the Chief Magistrate is absent, or, for any reason, is unable for the time being to carry out the duties of the office; and (ii) an Acting Chief Magistrate has not been appointed under subsection (1), the Governor may appoint a magistrate to be Acting Chief Magistrate until— (c) a person is appointed to the office of the Chief Magistrate; or (d) the Chief Magistrate returns to official duties, (as the case requires). (4) On the appointment of a magistrate to be Acting Chief Magistrate under this section, any power or function attached to the office of the Chief Magistrate under this or any other Act devolves on the magistrate so appointed. 7—Administration of magistracy (1) The Chief Magistrate is responsible for the administration of the magistracy. (3) The Chief Magistrate may (without derogating from his or her own powers) delegate to a magistrate any of the Chief Magistrate's powers or functions under this or any other Act. (4) A delegation under subsection (3) may be absolute or conditional and is revocable at will. Part 3—Tenure of office 9—Tenure of office (1) A person ceases to hold office as a magistrate if— (a) the person resigns his or her office; or (b) having attained the age of 55 years—the person retires from his or her office; or (c) the person attains the age of 70 years; or (d) in the case of an acting magistrate—the person's term of office expires; or (e) the person is removed from office by the Governor in accordance with the Judicial Conduct Commissioner Act 2015. Note— The power of removal referred to in paragraph (e) is the only statutory power to remove a magistrate from office. (2) Notice of a magistrate's intention to resign, or retire, from office must be given to the Attorney‑General at least 1 month before the resignation or retirement is to take place. (3) A person who ceases to hold office as a magistrate (otherwise than by reason of removal from office) may, with the approval of the Chief Magistrate, sit to hear and determine proceedings previously part‑heard by the person and, for the purposes of those proceedings, the person will be taken to continue as a magistrate. 10—Suspension from office (1) The Governor may, on the advice of the Chief Justice, suspend a magistrate from office. (2) If a magistrate is suspended from office under this section, he or she must be served with notice of the suspension. (3) A magistrate may not be suspended from office unless— (a) there are, in the opinion of the Chief Justice, reasonable grounds to suspect that the magistrate is guilty of an indictable offence; or (b) action is being taken under the Judicial Conduct Commissioner Act 2015 for the purpose of determining whether proper cause exists for removing the magistrate from office. (4) Except as otherwise determined by the Chief Justice, a magistrate will be entitled to remuneration in respect of a period of suspension from office. (5) A suspension imposed under this section will, if the Chief Justice so recommends, be revoked. (6) Except as provided in this section, a magistrate may not be suspended from office. Part 4—Remuneration 13—Remuneration of magistrates (1) Subject to this section, the Remuneration Tribunal will determine the rates of remuneration of magistrates, including the Chief Magistrate. (1a) A magistrate, while performing special duties for the time being directed by the Chief Magistrate with the concurrence of the Attorney-General, is entitled to such additional remuneration as may be determined by the Remuneration Tribunal. (1b) A magistrate (whether appointed on a full-time or part-time basis) is, while performing the duties of his or her office on a part-time basis, entitled to remuneration on a pro-rata basis in respect of his or her hours of duty at the rate determined by the Remuneration Tribunal under this section in relation to a magistrate appointed on a full-time basis. (3) A rate of salary determined under this section may not be reduced by subsequent determination. (4) The remuneration payable under this section will be paid out of the Consolidated Account which is appropriated to the necessary extent. (5) In this section— remuneration means salary, or salary and allowances. Part 5—Other conditions of office 14—Superannuation A magistrate is an employee within the meaning, and for the purposes, of the Superannuation Act 1974. 15—Recreation leave (1) Subject to this section, a magistrate is entitled to 20 working days recreation leave in respect of each completed year of service. (2) A proportionate entitlement to recreation leave will accrue in respect of each completed month of service. (2a) A part-time magistrate is entitled to pro-rata recreation leave in respect of his or her hours of duty. (3) Subject to this section, recreation leave will be taken at such times as the Chief Magistrate may approve or direct. (4) The taking of recreation leave may not be deferred for more than 1 year after completion of the year of service in respect of which the entitlement arose unless the Chief Magistrate is satisfied that there are special reasons justifying the deferral and approves the deferral. (5) The Chief Magistrate may not, by the exercise of his or her power of approval under subsection (4), extend a period within which recreation leave must be taken by more than 1 year. (6) A magistrate must, unless the Chief Magistrate otherwise directs, take recreation leave on every day (not being a Saturday, a Sunday or a public holiday) falling between Christmas Day of each year and New Year's Day of each following year. (7) If a magistrate fails to take recreation leave to which the magistrate is entitled at or within a time required or approved by or under this section, the magistrate will cease to be entitled to the leave. (8) If a person ceases for any reason to be a magistrate before taking recreation leave to which the person is entitled under this section, the person is entitled, in lieu of that leave, to the monetary equivalent of that leave standing to his or her credit on the date on which he or she ceased to be a magistrate. 16—Sick leave (1) Subject to this section, a magistrate is entitled to 12 working days sick leave in respect of each completed year of service. (2) A proportionate entitlement to sick leave accrues in respect of each completed month of service. (2a) A part-time magistrate is entitled to pro-rata sick leave in respect of his or her hours of duty. (3) In the case of illness or other pressing necessity, the Chief Magistrate may approve the taking of sick leave by a magistrate for a period not exceeding the period of sick leave currently credited to the magistrate and, in that event, the period credited will be reduced by the period of that leave. 17—Long service leave (1) A magistrate is entitled to long service leave calculated as follows: (a) in respect of the first 10 years of service—90 days leave; (b) in respect of each subsequent year of service up to and including the 15th year of service—9 days leave; (c) in respect of each subsequent year of service thereafter—15 days leave. (2) A magistrate may, if the magistrate so elects, take leave to which he or she is entitled under this section at half his or her ordinary remuneration and, in that event, the magistrate will be entitled to twice the number of days leave to which he or she would otherwise have been entitled. (3) Long service leave to which a magistrate is entitled must be taken at such times and in such periods as the Chief Magistrate may approve or direct. (4) Every day falling on or after the commencement of a period of long service leave will be counted as a day of that leave until the period for which the leave was granted is exhausted. (5) If a person ceases for any reason to be a magistrate before he or she has taken long service leave to which he or she is entitled under this section, he or she is entitled, in lieu of that leave, to a sum ascertained in accordance with the following formula: